On Wednesday, the Department of Justice filed an amicus brief stating that Title VII of the Civil Rights Act of 1964 does not protect against employment discrimination based on sexuality.
The brief was in response to Donald Zarda’s lawsuit against his employer, a skydiving company called Altitude Express. Zarda believed that the company fired him in 2010 after he told a female customer that he was gay. According to trial documents, he did this so that the customer would not be uncomfortable that he was strapped so tightly to her.
Zarda died in 2014 in a skydiving accident. Two executors of his estate continued the lawsuit on his behalf. The Court of Appeals for the Second Circuit is currently hearing the case.
The New York district court originally dismissed the lawsuit, ruling that Zarda could not file under Title VII because the act does not cover sexual orientation. The Justice Department’s brief encouraged the Second Circuit Court of Appeals to uphold the lower court’s ruling.
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts,” the brief says.
It goes on to add that since Congress never specified anything to do with sexual orientation in the act, the courts cannot act independently to change it.
Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. The legislation does not specify the exact meaning of “sex.” However, “in common ordinary usage, the word means only ‘biologically male or female,'” the brief continues.
But the Seventh Circuit Court of Appeals ruled in April that Title VII does protect sexuality. “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,'” Chief Judge Diane Wood wrote.
James Esseks, director of the American Civil Liberties Union’s LGBT and HIV Project, said in a statement that he was relieved that the courts could interpret the Civil Rights Act, rather than Attorney General Jeff Sessions and the rest of the Trump Administration.
“We are confident that the courts will side with equality and the people,” he concluded.
The Justice Department filed the brief the same day that President Donald Trump tweeted his ban on transgender service people in the military.